Prosecutors urged to reconsider rape case

A JUDGE has refused to permanently stay a rape case where a man has claimed he did not rape his former girlfriend while she slept because she was "always awake at the start".

In handing down her decision, Judge Deborah Richards said the man had given an "implausible explanation" for why his girlfriend had woken up with "a pain in her anus".

"The (alleged victim) recalled an incident where she woke up in the middle of the night and felt a pain in her anus," she said.

"(Her boyfriend) was awake watching a movie. She commented to him 'my ass is really sore, why would it be sore all of a sudden?'.

"He said she just farted really hard a second ago."

Mackay District Court heard the man was charged with a single count of rape after the woman allegedly found a series of images and about 10 videos on his phone in mid 2016.

It is alleged the videos showed her in the foetal position asleep with the man, who cannot be named for legal reasons, naked and having sex with her from behind.

She also alleges the photos showed her asleep either wearing underwear or naked.

The court heard the alleged images and videos, which have since been deleted, sparked a memory of an incident when she was lying in bed with her then partner and woke up with a sore anus.

Lawyers for the man tried to permanently stall the case on the grounds he would not receive a fair trial because a jury was likely to focus on "discreditable" conduct.

Judge Richards said the images and videos had been deleted and the phone had since been discarded.

"So while police might have been able to recover the deleted videos, the absence of a phone means the evidence in regards to the video is lost and the Crown relies on the memory of (the alleged victim) as to what was in those videos," she said.

"The Crown case is a circumstantial case based on the proposition that because she woke up on one night and felt her anus was sore, and the accused gave an implausible explanation, the jury, given the evidence of the images on the phone would conclude that he had penetrated her anus with his penis while she was asleep.

"The loss of that footage is unfortunate but in my view does not mean the indictment must be stayed.

"Trials are often run missing evidence.

"This is not in my view an exceptional case or an appropriate case for a stay.

"But it is difficult though to see how a jury could find, on the present state of the evidence, that a rape occurred ... without using the video evidence in an impermissible way, namely because he has penetrated her on another occasion he must have done it on this occasion.

"The Crown, in my view, should reconsider its position before pressing on with a trial in this matter, a trial that would be distressing for the complainant and it is likely not to make it past the end of the Crown case."